MILIKI TWAZIHIRWA MRINDOKO VS JUMA PILIPILI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI LAND APPEAL NO. 59 OF 2023 (Originating from Land Application No. 03 of 2017 of the District Land and Housing Tribunal for Same at Same) MILIKI TWAZIHIRWA MRINDOKO …………….............. APPELLANT VERSUS JUMA PILIPILI ….…………….............................. 1ST RESPONDENT LINAS ATHUMAN ……………………………………... 2ND RESPONDENT JUDGMENT 07/08/2024 & 14/08/2024 SIMFUKWE, J. Before the District Land and Housing Tribunal for Same at Same (the trial tribunal), the appellant lodged a suit against the respondents herein. The appellant claimed to be the lawful owner of a piece of land measuring 74 by 34 feet (suit land) situated at Hedaru Village, Hedaru Ward within the District of Same in Kilimanjaro region. It was alleged that the suit land was purchased by the parents of the appellant on his behalf from one Linas Athuman. 1 The brief facts of the case on record are to the effect that the appellant's parents purchased a plot measuring 162 by 91 feet from Linus Athumani for five million shillings. The appellant's father paid the first instalment of three million five hundred thousand shillings and he was given a plot measuring 57 by 88 feet as part of the whole land of 162 by 91 paces. It was agreed that the remaining piece of land measuring 74 by 34 (the suit land) would be handed over when the remaining amount is paid in full. It was alleged that the instalment of 1,500,000 million was paid on 01/03/2014 by the appellant’s mother who testified as SM3. The appellant’s evidence was supported by the evidence of Linas Athumani, who was the 2nd respondent before the trial tribunal and the vendor. The appellant’s claim before the trial Tribunal was that the 1st respondent illegally trespassed into the said land. The appellant’s claim was disputed by the 1st respondent who among other things testified that on 12/02/2006, he purchased the disputed land for TZS 900,000/= from his uncle Hossen Mrimi (according to Exhibit B4). After a full trial, the trial tribunal dismissed the appellant's case on the ground that the appellant failed to substantiate his claim as Linus Athumani was not the owner of the disputed land at the time he allegedly transferred it to the appellant’s father. The first respondent was declared the lawful owner of the suit land. Aggrieved, the appellant lodged the present appeal, 2 advancing seven grounds of appeal in his amended memorandum of appeal as follows: 1. That, the Trial Tribunal erred in law and in fact by declaring the 1st Respondent the rightful owner of the suit land basing on unsubstantiated evidence. 2. That, the decision of the Trial Tribunal was wrongly reached for having proceeded with material and procedural irregularities thus causing injustice on part of the Appellant. 3. That, the trial Tribunal’s decision is illogical and full of contradictions and does not disclose analysis and or evaluation of submissions, exhibits, evidence given by the Appellant together with his witnesses. 4. That, the Tribunal’s decision is questionable for lack of legal basis and that there are errors materials to the merits of the decision, thus, making the same improperly reached. 5. That, the Trial Tribunal did not go immensely in its reasoning so as to come up with an analytical and comprehensive decision of the matter but only uniformity of the feelings. 3 6. That, the Trial court grossly erred in law and fact in failing to properly evaluate, analyze and record the evidence adduced before it by both parties. 7. That, the Trial Tribunal’s judgment is not supported by the evidence on record. At the hearing, the appellant was represented by Ms. Esther Kibanga, learned counsel, while the respondent was unrepresented. The respondent requested to argue the appeal by way of written submissions, his prayer was granted by the court. Ms. Kibanga argued the 1st, 3rd and 6th grounds of appeal jointly as they are interrelated. The learned counsel submitted among other things that the respondent's allegations of purchasing the disputed land from his uncle Hosseni Mrimi through a sale agreement are unfounded and baseless. She gave the reason that there is no shared evidence on record proving that Hosseni Mrimi had ever owned the disputed property. She submitted further that it is trite law that the burden of proof lies to the one who alleges, as clearly stated in the case of Abdul Karim Haji vs. Nchimbi Alois & Another, Civil Appeal No. 99 of 2004, CAT (unreported). She explained that it is evident from the trial records that the appellant met the standard required in proving his case compared to the respondent who miserably 4 failed to prove his counter-claim. Ms Kibanga faulted the trial tribunal for failure to analyze evidence and identify omissions on part of the respondent which were so evident. It was reiterated that in civil cases the onus of proof lies on the claimant and the standard required to prove the case is on balance of probabilities. Whereby the party who has heavier and more credible evidence wins the case, and no matter how weak the evidence of one party is, it cannot strengthen the other party’s evidence. The learned counsel referred the case of Hemedi Saidi v. Mohamedi Mbilu [1984] TLR 113, which held that: (i) According to law both parties to a suit cannot tie, but the person whose evidence is heavier than that of the other is the one who must win; (ii) In measuring the weight of evidence, it is not the number of witnesses that counts most but the quality of the evidence. (iii) Where, for undisclosed reasons, a party fails to call a material witness on his side, the court is entitled to draw an inference that if the witnesses were called, they would have given evidence contrary to the party's interests.” 5 In addition, Ms. Kibanga referred this court to the case of Masolele General Agencies v. African Inland Church Tanzania [1994] TLR 192, which held that: "Once a claim for a specific item is made, that claim must be strictly proved." Ms. Kibanga continued to state that the 1st respondent alleged to have purchased the suit land from Hosseni Mrimi, and that his sons were his witnesses. However, neither the purported vendor nor the purported witnesses appeared to testify about the said agreement. The learned counsel was of the view that the vendor and his sons were not only necessary but also material witnesses for the 1st respondent. She added that, since the said agreement was the only evidence relied upon by the 1st respondent and its authenticity was questionable, it was crucial for the vendor and his witnesses to testify to clear all doubts. Furthermore, it was contended that among the issues raised concerning the 1st respondent's Agreement is that the vendor never signed it due to his old age. Instead, one of his sons signed on his behalf. However, the alleged son who signed on his behalf never appeared to testify, which creates more doubts. Ms. Kibanga pointed out that it was important for the said witnesses to testify due to the fact that the suit land was alleged to be the property of the family 6 and that the family of the respondent consented to the sale of the disputed property. Hence, those witnesses, being family members, were very reliable and credible witnesses to prove that the Vendor really owned the suit land. Thus, acquired a better title capable of being transferred to the 1st respondent, as observed in the case of Farah Mohamed v. Fatuma Abdallah [1992] TLR 205, in which His Lordship Mrosso J. (as he then was) held that: "He who doesn't have legal title to land cannot pass good title over the same to another." In the circumstances, Ms. Kibanga was of the opinion that there was no any valid agreement between the said vendor and the 1st respondent as the said Hossen Mrimi had no better title over the suit land as clearly stated in the case of Farah Mohamed (supra) The learned counsel argued that such omission caused miscarriage of justice on part of the appellant because he was denied his rights. The 1st respondent tendered the Sale Agreement, which was neither proven nor corroborated. Had the vendor and his witnesses, or the family members, testified, the appellant would have had the opportunity to cross-examine them and test their veracity and credibility, as well as verify the signatures on the Sale 7 Agreement. Consequently, the chairman should have found that the agreement was fictitious evidence. Ms Kibanga continued to submit that the 1st respondent's evidence was at variance with what he pleaded in his counterclaim. He argued that under paragraph 11 of the counterclaim, the 1st respondent stated that he purchased the suit land from Hosseni Mrimi, who had purchased it from Linus Athuman, the 2nd respondent herein. However, in his evidence, the 1st respondent stated that Hosseni Mrimi purchased the suit land from one Saidi Mngashwa. Another pointed-out inconsistency was that the 1st respondent, pleaded in his counter-claim that the suit land measured 30 meters by 70 meters, but when cross-examined, he stated that the suit land included an alley measuring 3 meters which is not in dispute. Thus, the respondent's evidence is inconsistent with his own pleadings which renders the same unreliable for contravening the legal principle which requires parties to be bound by their pleadings. It was commented that the three witnesses brought by the respondent were immaterial, unreliable, and incredible and that their testimonies contradict each other. While criticizing evidence of SU3 Hamisi Kusheba, Ms Kibanga submitted that the witness alleged that he witnessed the sale agreement and was a ten-cell 8 leader without any proof. Moreover, the learned counsel submitted that SU3’s evidence is baseless and unreliable as the same contradicts from what has been testified by the 1st respondent on some of material and basic issues. That, while the 1st respondent purported to have purchased the suit land, SU3 said that the 1st respondent inherited the same. It was submitted that Inheritance and Purchase are totally different transactions. Furthermore, it was stated that while the 1st respondent asserted that the sale Agreement and the names of witnesses were written by the Vendor's son, SU3 said that the same were written by the 1st respondent. The witnesses stated that the Vendor was a middle-aged man who could not sign the Agreement due to eye problems. Whereas, the 1st respondent alleged that he couldn't sign the document because he was very old. Ms Kibanga implored this court, to resolve/address and or reject conflicting testimonies on material issues before concluding the matter. She supported her contention with the case of Mohamed Said Matula v. Republic [1995] T.L.R 3 which held that: “Where the testimonies by the witnesses contain inconsistencies and contradictions, the court has a duty to address the inconsistencies and try to resolve them where possible.” 9 Another reference was made to the case of Emmanuel Abrahamu Nanyaro v. Peniel Ole Saitabau [1987] TLR 47 which held that unreliability of witnesses, conflicts, inconsistencies in their evidence entitle the judge to reject evidence. The learned counsel challenged evidence of SU4 on the ground that it is fictitious and mere speculations. The allegation that the respondent is the owner just because he stayed opposite to him and once escorted him to meet the 2nd respondent is fictitious. When the 1st respondent was cross-examined, he admitted that the 2nd respondent’s representative knew nothing about it. It was commented that since the 2nd respondent’s representative was a layperson, he might not have properly cross-examined the 1st respondent on vital issues, including the said allegation of meeting Linus Athumani. However, the learned counsel was of the view that the same did not bar the Tribunal from properly analyzing evidence on vital issues before reaching a conclusion, as observed in the case of Kwiga Masa vs. Samweli Mtubatwa [1989] TLR 103 (HC), which at page 108 held that: “Failure to cross-examine is merely a consideration to be weighed up with all other factors in the case in deciding the issue of truthfulness or otherwise of the unchallenged evidence. The failure does not necessarily prevent the court 10 from accepting the version of the omitting party on the point. The witness' story may be so improbable, vague or contradictory that the court would be justified to reject it, notwithstanding the opposite party's failure to challenge it during cross-examination.” It was submitted further that evidence given by SU4 corroborates the 2nd respondent's evidence that the disputed property belongs to the Appellant. During cross-examination, he admitted that he would never doubt or disagree with any defense presented in court by his aunt, the 2nd respondent. Concluding the 1st, 3rd and 6th grounds of appeal, Ms. Kibanga argued that since the tribunal's decision was based on inconsistent, contradictory, and uncorroborated evidence, the decision and its order are bad in law and unjustified. Therefore, this appellate court should overturn it accordingly. Regarding the 2nd and 4th grounds of appeal which concern material and procedural irregularities in the trial tribunal's decision and lack of legal basis; Ms. Kibanga explained that apart from the fact that the validity of the 1st respondent's Agreement was questionable, it was also wrongly admitted or relied upon to support the 1st respondent's claims. She argued that the agreement lacked a stamp duty, which contravened the provisions of sections 5 and 47(1) of the Stamp Duty Act, Cap 189 R.E 2019. She 11 supported her argument with the case of Salum Viale Kibwana versus Shaban Besa & Philipina Mchomvu, Civil Appeal No. 23 of 2022. The learned counsel notified this court that during the trial, this issue was raised during cross-examination, but the 1st respondent's counsel sought leave of the court to have the document stamped before the conclusion of the matter. However, due to the fact that he failed to do so, then the Sale Agreement lacks evidential value and was therefore wrongly admitted or acted upon. According to Ms. Kibanga, such irregularities and other material errors went to the root of the case and caused a miscarriage of justice to the appellant. It was averred that the document, which was illegally admitted or acted upon in contravention of mandatory legal provisions, was used by the court to determine the 1st respondent's ownership of the suit land, leading to an unjust decision against the appellant. It was insisted that the records of the trial court and the decision reached show that the trial court's decision lacks proper analytical legal reasoning. On the last cluster of grounds of appeal which consists the 5th and 7th grounds; Ms. Kibanga argued that the Tribunal's judgment is brief and unclear. She contended that the chairman did not clearly determine the points of law, issues, or evidence presented. 12 Additionally, the appellant’s counsel blamed the Hon. Chairman for failing to balance and weigh evidence of both parties, leaving some issues uncontested. Consequently, the judgment did not meet legal requirements, as discussed in Michael s/o Joseph v. The Republic, Criminal Appeal No. 506/2016, Court of Appeal of Tanzania at Tabora. Furthermore, the learned counsel challenged the decision of the trial tribunal on the ground that the Trial Chairman ignored some material points and included evidence or facts that were neither pleaded nor testified by the parties or their witnesses. That, the judgment is not supported by the evidence on record. She referred to page 5 of the trial court judgment, which reads: ".... lakini ushahidi wa mjibu maombi wa pili na mashahidi wake wameeleza kuwa ardhi ya mgogoro ni mali ya mjibu maombi wa kwanza SU2." It was cemented that nowhere in the entire proceedings whereby those witnesses gave such a testimony as the 2nd Respondent (SU1) did not call any witness. Ms Kibanga asserted further that the Trial Chairman deliberately and unreasonably rejected the Applicant's application. She stated that the records show that the Appellant had a very strong and reliable case. However, the trial Chairman failed to consider it. The Chairman did not delve deep into his reasoning instead, he relied on extraneous matters as 13 previously submitted, thereby denying the Appellant's rights over the suit land. She claimed that the finding that the Applicant never proved his case on the ground that the sale agreement did not state the size of 192 meters by 91 was immaterial and misleading because the said fact is partly undisputed. That, making a finding on something which is not in dispute is a total misconception of law and fact. It was stressed that the Applicant, the Vendor and his witness, testified and clarified why the said meters were not included in the Agreement. He stated further that everything not written in the initial Agreement appeared in the final written Agreement as well as in the Vendor's Affidavit. Ms Kibanga cited the case of Stanslaus R. Kasusura and Attorney General v. Phares Kabuye [1982] T.L.R. 338 which observed that: a. The trial judge should have evaluated the evidence of each of the witnesses, assessed their credibility and made a finding on the contested facts in issue. b. The judgment is fatally defective; it leaves contested material issues of fact unresolved. It is not really a judgment which can be upheld or upset. It can only be rejected. 14 c. We think that the only course we can adopt is the unusual one of setting aside the judgment of the High Court and ordering a retrial. In her final remarks, the learned counsel insisted that the trial court did not properly analyze and evaluate the evidence on record, thereby relying on unsubstantiated, inconsistent, contradictory, and uncorroborated evidence. In lieu thereof, the trial tribunal glossed over the evidence to justify its conclusion. She believed that had the trial court properly directed its mind to the law and facts, it would have reached a just and reasoned decision that the application had merits and the appellant was entitled to all the reliefs prayed for. In reply, on the outset, the 1st respondent prayed the court to dismiss the appeal with costs for being devoid of merit. He submitted that during the trial the appellant failed miserably to prove his ownership of the suit land to the required standard. That is on balance of probabilities. Second, that the appellant seeks to succeed in his appeal basing on the perceived weakness on the 1st respondent’s case rather than on the strength of his case contrary to the well-established principles of law. Responding to the first cluster of submission regarding the 1st, 3rd and 6th grounds of appeal; the 1st respondent submitted that the trial tribunal was 15 justified in declaring him the lawful owner of the suit land since his case was stronger and more consistent than that of the appellant. He said that he proved his claim on balance of probabilities. The 1st respondent was of the view that the authorities cited by the appellant actually are against him and in favor of the 1st respondent. It was the appellant's responsibility to present a clear case with sufficient and strong evidence, which he failed to do. The 1st respondent supported his submission with the case of Hemedi Saidi vs. Mohamedi Mbilu (supra). Secondly, he noted that the number of witnesses does not matter; what counts is the quality of evidence. The first respondent alleged that he called two witnesses: SU2, his nephew who was staying with him, and SU3, the neighbour mentioned by both parties. He argued that although the number of witnesses was minimal, he believed their evidence was undeniably perfect. Another rule from the case of Hemedi Said (supra) is that failure to call a material witness allows the court to infer that the witness would have given evidence contrary to the party's interests. Regarding this rule, the 1st respondent noted that during the trial, the second respondent refused to give evidence on behalf of the appellant. Thus, the appellant decided to amend the application and sue him as a second respondent, although the cause of action was not disclosed. It was clarified that it was clear that the 16 purported representative of the 2nd respondent was planted and had no relationship whatsoever with her. The 1st respondent cited the case of Masolele General Agencies vs. African Inland Church Tanzania [1994] TLR 192, which held that: “Once a claim for a specific item is made, that claim must be strictly proved….” The 1st respondent argued that the appellant was not only required to prove his ownership but also to prove that on the date of purchase of the original plot in writing, there was an additional oral agreement for the alleged extra piece of land, which was part of a larger piece of land whose price was to be paid in the future. He commented that the appellant's claim was far- fetched and an afterthought, with the aim of depriving him of his lawful property. Responding to the issue of inconsistencies and contradictions in his case, the 1st respondent submitted that the inconsistencies and contradictions if any, were considered by the trial Chairman, who had the first-hand opportunity to hear the witnesses, observe their demeanor and veracity, and determine that they did not affect the truthfulness and strength of the evidence given. 17 The 1st respondent disputed the 2nd and 4th grounds of appeal, which concern procedural and material irregularities in the decision of the trial tribunal and its lack of legal basis. Concerning lack of stamp duty in the purchase agreement, the 1st respondent submitted that even without the said purchase agreement, he adduced sufficient evidence, including testimonies of witnesses and other exhibits tendered, confirming he was the owner of the disputed property. He believed that he fulfilled the legal requirements for proving his case. Lastly, on the 5th and 7th grounds of appeal, the respondent contended that nothing in the trial tribunal's decision would warrant a reversal of the decision as justice was duly served. He insisted that the appellant did not present a strong case for him to succeed. He was of the view that the trial tribunal's decision was based on proper analysis, which unfortunately for the appellant, did not end in his favor. In conclusion, the respondent prayed that the appeal be dismissed with costs. Having carefully examined the record of the trial tribunal and considered submissions of both parties, I am duty bound to scrutinize the grounds of appeal, bearing in mind that this being the first appellate court, I am required to reconsider and re-evaluate the entire evidence on record and, if 18 warranted, draw my own inferences of facts. See the case of Yustus Aidan vs Republic, Criminal Appeal No. 454 of 2019, CAT at Arusha. The appellant, through his counsel, raised seven grounds of appeal, which I will address in the order adopted by the appellant’s advocate. Starting with the first cluster of the grounds of appeal (the 1st, 3rd, and 6th grounds of appeal); which concern failure of the trial Tribunal to evaluate evidence. Generally, in these grounds, the main grievances of the appellant are threefold: First, that there is no evidence to prove that Hosseni Mrimi, who sold the disputed land to the 1st respondent, ever owned the said land. Second, even the alleged sons of Hosseni Mrimi who were purported to had witnessed the sale were not called to testify. Third, there is a variation in the evidence of the 1st respondent. The above arguments were disputed by the 1st respondent, who submitted and insisted that his evidence was stronger than that of the appellant. He challenged the power of attorney issued to one Ibrahim Juma Selemani on the ground that the Donnée was not related to the Donor. While evaluating the evidence, the learned trial chairman noted at pages 5 and 6 of the judgment that, first, Exhibit A1 the second agreement between the appellant’s mother and Linas Athuman does not reflect whether the 19 money paid by the buyer are part of the five million shillings and whether the buyer was handed over the disputed property. Second, the trial chairman found that since Exhibit B4 proves that the 1st respondent purchased the said land in 2006, Linas Athuman had no title to pass to the appellant even if the said land belonged to her. I have examined the entire evidence on record vis a vis the trial Tribunal’s judgment with an open mind, bearing in mind that in civil cases, the burden of proof lies upon the person who desires the court to rule in their favor. The standard of proof is on balance of probabilities pursuant to section 110 (1) and (2) of the Evidence Act, Cap. 6 R.E 2022. See; Ernest Sebastian Mbele vs Sebastian Mbele & Others (Civil Appeal 66 of 2019) [2021] TZCA 168 and the case of Jasson Samson Rweikiza vs Novatus Rwechungura Nkwama (Civil Appeal No. 305 of 2020) [2021] TZCA 699 (29 November 2021) [Tanzlii] at page 14 in which the Court of Appeal stated that: “It is again elementary law that the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his burden and that the burden of proof is not diluted on account of the weakness of the opposite party's case.” 20 In proving the issue of ownership, it is my considered opinion that the applicant ought to prove, inter alia, the trend of ownership from the original owner to the current claimant on balance of probabilities. During the trial, in pursuit of proving the issue of ownership of the suit land, the appellant alleged that the said land was initially owned by Linas Athuman, who was the second respondent before the trial tribunal. This evidence was confirmed by Linas Athuman herself, who testified as SU2. The appellant alleged that it was his parents who purchased the land, including the disputed portion, on his behalf. The appellant tendered Exhibit A1 to prove his evidence. He added that the last instalment paid for the disputed land was made by his mother, who testified as SM3 and tendered Exhibit A2. The appellant's evidence was supported by SM2, who testified that he had known the disputed land since 1997 as he was a neighbour. He confirmed that it was owned by Linas Athumani, who later sold it to the appellant’s parents. SM4's evidence supported the appellant's claim, stating that he witnessed the agreement whereby the money was paid on instalments. The last instalment was paid by the appellant’s mother as reflected in exhibit A2. The 1st respondent alleged that he purchased the disputed land from his uncle, Hosseni Mrimi, in 2006 through a sale agreement, which was admitted in court as Exhibit B4. In his counterclaim, included in his Written Statement 21 of Defence, the 1st respondent stated under paragraph 11 that Hosseni Mrimi acquired the land from Linas Athuman. However, during the trial, at page 124 of the proceedings, he testified that Hosseni Mrimi obtained the land from Said Mnghashwa. The 1st respondent's evidence was supported by SU3, who stated that he was appointed as the caretaker of the area by the 1st respondent. Also, SU4 testified that the disputed land belonged to the 1st respondent. Weighing evidence of the 1st respondent and that of the appellant, it is my strong opinion that the appellant's evidence is stronger than that of the 1st respondent for the following reasons: First, the appellant sufficiently proved the trend of ownership from SU2 Linas Athuman, who was the original owner, and how it passed from the original owner to the appellant’s parents who purchased it for the appellant. Second, Exhibit A2, which is the agreement to pay the last instalment of 1,500,000, proves that upon payment of the last instalment, the disputed land was handed over to the appellant's mother. This was confirmed by SM3, the appellant's mother, and SU2, the vendor, as well as SM4, the witness to the sale agreement. From that piece of evidence, I am of strong opinion that the appellant sufficiently proved the trend of ownership from the original owner to his parents. 22 On the other side of the coin, weighing the above evidence with the 1st respondent's evidence, I hesitate to agree with the 1st respondent’s version of the story because he failed to prove the trend of ownership from the original owner to the alleged Hosseni Mrimi. Then, to the 1st respondent himself. First, there is inconsistency which touches the root of the matter concerning the original owner. As pointed out by the appellant, under paragraph 11 of the counterclaim, the 1st respondent said that Hosseni purchased the suit land from Linas Athuman (SU2). However, during cross- examination, as seen at page 128 of the proceedings, he said Hosseni Mrimi got the land from Juma Mghashwa. These two versions of the story create doubt about the 1st respondent’s evidence regarding the trend of ownership from the original owner to him. Concerning the Power of Attorney, with all due respect to the 1st respondent, the Power of Attorney was admitted before the trial Tribunal as exhibit B1 without objection as seen at page 107 of the trial tribunal proceedings. Thus, there is no room for the respondent to challenge it on appeal. It is an established principle of law that an exhibit admitted without objection amounts to an admission of its content. In the case of Joseph Deus @ Sahani & Another vs Republic (Criminal Appeal 564 of 2019) [2022] TZCA 411 Tanzlii at page 11 it was held that: 23 “It is a settled law that the contents of an exhibit which was admitted without any objection from the appellant, were effectually proved on account of failure to raise an objection at the time of its admission in evidence.” Regarding the 2nd and 4th grounds of appeal, Ms. Kibanga challenged the respondent's sale agreement on the basis that it lacks stamp duty. This argument was disputed by the 1st respondent, who argued that even without the purchase agreement, there is sufficient evidence from witnesses and other exhibits to prove ownership. I have gone through the impugned sale agreement, as pointed out by the appellant’s advocate, the sale agreement lacked stamp duty. This contravenes sections 5 and 47(1) of the Stamp Duty Act (supra). Despite this issue being raised during cross-examination, the 1st respondent did not bother to comply with the law by stamping the same. Thus, it was not proper for the trial Tribunal to rely on it. The Court of Appeal in the case of Alex Msama Mwita vs Leonard Reed (Civil Appeal No. 620 of 2022) [2024] TZCA 477 (19 June 2024) at pages 18 to 19 made reference to the case of Zakaria Barie Bura v. Theresia Maria John Mubiru [1995] T.L.R. 16, in which the Court held that: 24 "The second reason why the appellant could not have obtained the title to the suit premises, even if the sale agreement had not been tainted with illegality, is the fact that neither document containing the agreement bears any indication of payment of stamp duty according to the Stamp duty Act. By law, such omission renders the sale agreement inadmissible as evidence in court, unless the party concerned pays the stamp duty before the document is admitted as evidence." In the case at hand, based on the fact that the sale agreement tendered by the 1st respondent contravened the law, it must be expunged from the record as I hereby do. On the 5th and 7th grounds of appeal, the appellant challenged the decision of the trial tribunal. Upon reading the impugned judgment, I am of the considered opinion that it is supported by the evidence on record, except that the evidence was not properly evaluated to warrant the 1st respondent's victory. As the first appellate court, my scrutiny of the evidence reveals that, the appellant proved ownership of the disputed property on balance of 25 probabilities. On the basis of these findings, I hereby quash and set aside the judgment of the trial tribunal. Hence, I allow this appeal with costs. It is so ordered. Dated and delivered at Moshi this 14th day of August, 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 14/08/2024 26